Ex Parte Guzmon

730 S.W.2d 724
CourtCourt of Criminal Appeals of Texas
DecidedApril 8, 1987
Docket69615
StatusPublished
Cited by48 cases

This text of 730 S.W.2d 724 (Ex Parte Guzmon) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ex Parte Guzmon, 730 S.W.2d 724 (Tex. 1987).

Opinions

OPINION

CLINTON, Judge.

Applicant was convicted of capital murder and his punishment assessed at death after the jury answered three special issues in the affirmative. Article 37.071, V.A.C. C.P. On direct appeal to this Court the judgment of the trial court was affirmed. Guzmon v. State, 697 S.W.2d 404 (Tex.Cr.App.1985). Subsequently applicant filed an application for writ of habeas corpus pursuant to 11.07, V.A.C.C.P. A hearing was held on the writ in the trial court, which denied relief. We ordered the writ filed and set for submission to consider applicant's claim that he was denied the effective assistance of counsel both at trial and on direct appeal.

The facts of the offense are well summarized in Presiding Judge Onion’s opinion on direct appeal. 697 S.W.2d at 406-07. Briefly restated, applicant and two companions were returning from Houston to Dallas when they stopped at a service station outside Corsicana because they had developed car trouble. The time was 1:30 a.m. Brian Ingram, the lone attendant at the Shell station, had no tools to loan the three men but directed them across the highway to an Exxon station. Ingram testified at trial that applicant appeared intoxicated and spoke no English. At the Exxon station, Albert Webb, the attendant, tried to repair applicant’s car but gave it up as hopeless. A few minutes later another customer, Henry Finch, arrived, and Webb replaced the headlights on his Ford Granada. Afterwards, while Webb and Finch were inside the station, applicant entered with a gun and demanded the keys to the Granada. Finch informed him that the keys were still in the car. Applicant ran to the Granada and got in the passenger side, joining his two companions who were already inside and trying to start the car. Finch ran after him and around to the other side of the car, where he opened the door and grappled with the driver, trying to drag him from the car. Applicant leaned forward and shot Finch, inflicting a wound that proved fatal. Applicant and his companions drove on to Dallas, where he was later arrested by police who had traced his identity and address through the car he had abandoned at the Exxon station in Cor-sicana.

Applicant’s trial for capital murder, at which he claims to have been afforded ineffective assistance by his two court-appointed attorneys, began some four months later. We shall examine that trial in light of testimony later adduced at applicant’s writ hearing.

I. Voir Dire

Applicant was an illegal alien from El Salvador. He contends that counsel were ineffective for, inter alia, informing the prospective jurors of this fact. He complains particularly of their method of informing the jury. Counsel referred to their client as a “wet-back.” An excerpt from defense counsel’s examination of Karen Fate serves to illustrate this technique.

Q. Well, generally we find people who, while their knuckles are clinched [sic] tight, say some of my best friends are black people. Well, we know they don’t really mean that, and you know, in other situations just an opinionated situation is when I drive down the highway, and I see a skunk that has been run over by a car. I turn my nose up in anticipation, because I’m opinionated about that smell. Now, that is a far-fetched, far-stretched absurdity, but both of those are realistic feelings that we have, you know, that effect [sic] our decisions. Now, Moisés Romero [1] is a wet-back. He is, as termed, that he is an illegal alien in this country. Would he be starting out at a disadvantage because he is [726]*726not a citizen and not raised in Corsicana, Texas, in your eyes?
A. No.
Q. Do you feel like, and this goes to what we all, what our roots are about. Do you feel like that he is entitled to the same rights, privileges and obligations in this country as if he were a citizen?
A. Not to a total extent, I don’t think.
******
Q. And do you feel like that they have the basic rights that we have as Americans, and because this is a free country?
A. The basic rights, yes.

This venireperson was subsequently accepted by both sides as the first juror. Another, who also became a juror, was informed by defense counsel, “Now, we’ve kind of touched on it before here, now, Jose Moisés Romero is a Salvadoran. I think probably the District Attorney could come up and show that he’s what’s commonly called a wet-back ...”

That the district attorney could legally have made such a showing to the jury, however, is not beyond dispute. At the writ hearing Robert Dunn, applicant’s attorney at trial, was asked whether he thought the information that applicant was an illegal alien would have been admissible at the guilt phase of trial, and responded, “I don’t know that it would have been.” He thought, however, that the jury would get that impression anyway because of the fact that applicant spoke only Spanish. Additionally, referring to his client as a wet-back was part of his voir dire strategy:

And I felt since we did have a minority race client, Mr. Smith and I felt that it was, indeed, necessary for us to root out any prejudice that existed and in my opinion the best way since we were interviewing these jurors on an individual basis where we had a one-on-one situation with complete eye contact I felt it was better to bring forward all the prejudicial matters that might or might not be brought just to see if their knuckles turned white or if they grimaced or if they were quick to answer either for or against the term and I used many terms ... I even used the term “wetback,” just to elicit reaction. I was in hopes on an overall basis to elicit the sympathy of this jury as an underlying main streme [sic] trial tactic.

Furthermore, counsel didn’t personally feel that the term wetback carried any “bad connotation.”

The use of this ethnic slur in reference to his client was, therefore, part of a conscious strategy in selecting jurors. In at least one instance, the tactic arguably worked well, when counsel questioned Barbara Brooks and informed her that his client “is an unauthorized immigrant, or we might call him a wet-back, which — ” “I wouldn’t,” responded Brooks, and was subsequently accepted on the jury.

More often, however, counsel failed to act on the apparent prejudices he uncovered. Following is an excerpt from the voir dire examination of Ronnie Owens:

Q. I’ve spoken about my client here. He’s a Salvadoran. San Salvador, where all the problems are going on. He’s a wet-back, and based on that, would you have any adverse feelings about him?
A. No, sir.
Q. You feel that these illegal aliens, once they’re here have the right to all the guardianships of our law?
A. No. I don’t think that’s right.
Q. Well, would this cause you to feel strongly enough against him?
A. No. I don’t think so. Not in this case.

In spite of his expressed opinion that illegal aliens such as applicant are not entitled to “all the guardianships of our law,” Owens was accepted by the defense and served on the jury.

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Cite This Page — Counsel Stack

Bluebook (online)
730 S.W.2d 724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ex-parte-guzmon-texcrimapp-1987.